Donation of real estate in this case constitutes fraudulent act

The act of donation of each of the instant real property to AA, the wife, resulting in excess of debt, constitutes a fraudulent act detrimental to the general creditors including the Plaintiff.

Article 30 of the National Tax Collection Act: Revocation and Restoration of Fraudulent Act

2013 Ghana 72827 Revocation of Fraudulent Act

Korea

AA

November 8, 2013

December 20, 2013

1. (a) With respect to the real estate listed in the separate sheet 1 between AA and BB, the agreement on the gift made on August 25, 200 XX 1.A. As to the real estate listed in the separate sheet 1 between the Defendant and Nonparty BB, the agreement on the gift made on August 25, 2010 shall be revoked within the limit of gold ○○○○○○.

B. AA shall pay to the Plaintiff ○○○○○○○○ and its amount at a rate of 5% per annum from the day following the day when the judgment of this case became final and conclusive to the day of full payment.

3. A. (a) Revocation of a gift agreement on August 25, 200, with respect to the real estate listed in the separate sheet 2 between AA and Nonparty BB.

B. AA shall implement the procedure for registration of cancellation of ownership transfer registration made by ○○ District Court ○○○○○○○○○○○○○○ on August 26, 200 XX with respect to the real property listed in attached list 2 to Nonparty BB.

The same shall apply to the order.

1. Determination on the cause of the claim

According to each of the statements in Gap evidence 1 through 9, the facts of the reasons for the claim can be recognized.

Therefore, the act that BB donated each real estate listed in the separate sheet, which is a collateral-value property under the condition that BB is liable to pay capital gains tax on the Plaintiff, to AA, which causes excess of the obligation, is a fraudulent act that causes damage to the general creditors including the Plaintiff, and the bad faith of AA is presumed.

2. Judgment on the argument of AA

In regard to this, AA asserts to the effect that since ○○○○○○○-○○○○○○○○○○○○○○○○○○○○○○○○○○○ site (hereinafter referred to as “transfer land”) which is subject to the imposition of capital gains tax is the full amount of the capital gains tax reduced or exempted for not less than eight years, the Plaintiff’s preserved claim is not recognized. However, in light of the fact that: (a) the entry of No. 2 and BB did not dispute the imposition of capital gains tax; and (b) there is insufficient evidence to deem that the Plaintiff did not have any liability to pay capital gains tax on the transferred land

Next, AA asserts to the effect that, although BB completed the registration of transfer to Nonparty CCC with respect to the transferred land, the Plaintiff’s disposition of transfer income tax is not effective against the substance over form principle, and thus, the Plaintiff’s preserved claim cannot be recognized.

On the other hand, since capital gains tax is levied on income from the transfer of assets, even if the sales contract appears to have been invalidated from the beginning or cancelled later, if the sales contract seems to have been deemed to have been transferred by the sales contract, in principle, the transferred sales price shall be returned to the transferee in principle so that the transferor's income may not be deemed subject to capital gains tax (see, e.g., Supreme Court en banc Decision 2010Du23644, Jul. 21, 201). However, in this case, there is no assertion or proof as to the cancellation or cancellation of the transfer contract for the transfer of land on the ground that the transfer contract was unpaid, and rather, according to the evidence No. 1, it can be acknowledged that AAA had the residual payment claim against the non-party CCC by filing a lawsuit for the payment of residual payment against the non-party CCC, and thus, it is difficult to deem that there is no benefit that is a subject of taxation of land, and there is no other evidence to acknowledge AAA.

3. Conclusion

Therefore, the act of BB made a donation of each of the instant real property to AA shall be revoked as a fraudulent act. Meanwhile, since the right to collateral security established on the real property listed in the separate sheet 1 was revoked after the fraudulent act, the donation contract between BB and AA on the real property listed in the separate sheet 1 between BB and AA shall be revoked within the scope of ○○○○○○○○○○○○○ upon deducting the amount of secured debt of the right to collateral security recognized by the statement stated in the separate sheet 4 from the market price at the time of the fraudulent act, and AA has a duty to pay damages for delay calculated at a rate of 5% per annum as stipulated in the Civil Act from the day following the date of completion of the judgment, and ② a donation contract on the real property listed in the separate sheet 2 between BB and AB shall be revoked as a fraudulent act; and AB has a duty to cancel the ownership transfer registration on the real property under the separate list 206 to be restored to its original state.

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.